Friday, March 8, 2013

Yesterday's announcement of an MPEG LA patent license agreement with Google relating to the VP8 video codec (part of Google's WebM project) was perceived as good news by many supporters of this format. But an email posted by a Google employee to an Internet Engineering Task Force (IETF) raises questions about FRAND licensing terms, and companies that don't contribute patents to the MPEG LA-Google deal may still hold patents infringed by VP8: Nokia told a German court today at a Nokia v. HTC patent trial that it's convinced VP8 infringes at least claim 46 of EP1206881 on an "apparatus and method for compressing a motion vector field". Nokia holds many patents on video compression technologies and (like Google's Motorola Mobility and some other codec patent holders) does not participate in MPEG LA's AVC/H.264 pool.

After years of claiming that VP8 isn't patent-encumbered, Google has now chosen to take a license, which is inconsistent with a categorical denial of encumbrance.

Yesterday Google employee Serge Lachapelle posted an email to the IETF's rtcweb mailing list that you can find archived on this page. Note the following three sentences in the fifth paragraph:

"Google intends to license the techniques under terms that are in line with the W3C’s definition of a Royalty Free License. This definition can be found here: http://www.w3.org/2001/07/SVG10-IPR-statements We anticipate having the sublicense ready in the next few weeks."

There's no problem with this commitment to royalty-free licensing, except that the link does not point to the World Wide Web Consortium's (W3C) current and royalty-free patent policy, which you can find at the following address: http://www.w3.org/Consortium/Patent-Policy-20040205/ Instead, the link provided by Mr. Lachapelle points to the SVG (Scalable Vector Graphics) Patent Statements, which is three years older than the current W3C royalty-free patent policy and, very importantly, includes three [F]RAND patent statements (by Kodak, IBM and Quark).

This afternoon I attended a two-hour Nokia v. HTC patent trial in Mannheim, Germany, over which the often-mentioned Judge Andreas Voss ("Voß" in German) presided. Nokia has already asserted three dozen different patents against HTC, and EP1206881 on an "apparatus and method for compressing a motion vector field" is the one that was at issue today.

During the first part of his introductory outline of the case, Judge Voss said Nokia is asserting the patent-in-suit against HTC smartphones and tablet computers running Android version 2.3 or higher with respect to the ability of those products to decode VP8 videos. Counsel for Nokia indeed based the infringement allegation in no small part on what the specifications of the Google-controlled VP8 standard say, which is an unmistakable sign that Nokia considers EP1206881 to be inevitably infringed by all implementations of VP8.

Nokia does not have any FRAND licensing obligations: it didn't participate in a standard-setting process related to VP8. VP8 was created by a company Google acquired.

Google is participating in this lawsuit, and presumably also in the corresponding lawsuit before the Chancery Division of the High Court of England and Wales, as a third-party intervenor.

A decision on the German case, which may or may not be a final ruling, will come down on May 17, 2013. In its post-trial brief Nokia still needs to overcome a couple of hurdles in order to prevail. Even if the May 3 decision works out well for HTC and Google, Nokia could still appeal, the UK decision won't necessarily be the same as the German one (whichever way it ultimately goes), and this isn't necessarily the only patent Nokia considers to be infringed by VP8 (and Nokia isn't the only patent holder outside the MPEG LA group to hold video codec patents that VP8 may infringe).

It's purely coincidental that the world's first VP8 patent trial took place less than 24 hours after the MPEG LA-Google announcement. The question is how many more trials it will take before Google can reliably claim that the VP8 patent situation is under control.

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About Me

Florian Mueller is an app developer who used to be an award-winning intellectual property activist. His 30 years of software industry expertise span different market segments (games, education, productivity and infrastructure software), diverse business models, and technical and commercial areas of responsibility. In recent years, Florian advised a diversity of clients on the patent wars surrounding mobile devices, and on their economic and technical implications. (In order to avoid conflicts of interest, Florian does not hold or initiate transactions in any technology stocks or derivatives thereof, except that he is long AAPL.) He is now developing games for smartphones and tablet computers.